Full Judgment
2. The subject of challenge is the order of confiscation of 138 bales Hydraulics Hose and the fine of Rs. 75,000/- levied in lieu of confiscation.
3. Shri Biradar appearing for the Appellants contended that what was imported are not rubber hose but they are articles of steel and therefore the Collector committed an error in holding that the goods imported were banned item. In support of his contention, Shri Biradar relied on the steel contents of the hose. He submitted the steel wire content is 1.22 kgs. per meter as against rubber content of 0.96 kg.
per meter. The weight of the steel being more than the rubber the goods should have been considered as made of steel and clearance should have been allowed under O.G.L under Appendix 10 (2) of the Policy A.M. 83.
Shri Biradar also placed reliance on the catalogue of Dunlop Hydraulic Hose. Ltd. 4. Finally, Shri Biradar urged even if his contention is not accepted the fine levied in lieu of confiscation is excessive since the appellants are Actual Users.
5. Shri Prabhu for the respondent, while opposing this appeal, contended that the appellants have rightly described their goods as falling under Tariff Heading 40.05/16.1 which covers rubber, synthetic rubber, Factice and articles thereof." It was further submitted by Shri Prabhu that the goods imported cannot be considered as Article of steel. Finally, Shri Prabhu urged that the fine levied works out to 30% of the c.i.f. value and therefore the same should not be interfered with.
6. We have considered the submissions made on both the sides and perused the records. The short question for our consideration is whether the goods which the appellants themselves have described as Hydraulic Hose are rubber hose as contended by the Department or Article of steel as contended by the appellants. During the hearing of the appeal, when we enquired with Shri Biradar for production of the indent placed with the foreign supplier, the invoice sent by the foreign supplier, Shri Biradar submitted that he has not got those documents. Along with the appeal, those documents were not produced and even a copy of the Bill of Entry had not been produced.
7. The order of the Collector discloses that during the personal hearing the appellant's representative was specifically asked as to which heading of the Tariff covers the goods imported by them. It appears the representative of the appellants promised to consider and send a letter specifying the heading but then though the representative sent a letter it was silent as to the heading of the tariff item within which the goods would fall. The catalogue produced also does not help the appellants. By description as well as functionally the goods imported are Rubber Hose and therefore we are unable to accept Shri Biradar's contention that it is an Article made of steel. The steel wires as had been rightly held by the Collector were used for reinforcing the hose. What is material in the matter of classification is not only the contents of which the material is made of but its functions and how the same is considered in the trade parlance. In none of the import documents the imported goods is described as an item of steel or spiral hose as now contended by Shri Biradar. No trade opinion is also produced even at the appellate stage.
8. In the circumstances stated above, we are of the opinion that the contention of Shri Biradar that the learned Collector committed an error in treating the goods as rubber hose has no merit. The Collector, in our opinion, had rightly ordered confiscation.
9. The only question that remains for consideration is about the quantum of fine. The ci.f. value of the goods was Rs. 2,52,489/-. The fine levied in lieu of confiscation is Rs. 75,000/-. It roughly works out to 30%.
10. It is not disputed that the appellants are manufacturers of Hydraulic high impulse assemblies. It is for this manufacturing activity they import hydraulic hose. Considering the above fact, we reduce the fine to 25% of the c.i.f. value. The appellants be granted the consequential relief.